Tawi v Tawi [2009] PGDC 116; DC943 (18 December 2009)

DC943

PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE

DCR 1079/2009

BETWEEN:

JUANITA KALIP TAWI
Applicant

AND:

AFININI TAWI
Respondent

MADANG: J KAUMI, M
2009: 18th December 2009

District Courts – Application for Respondent to be required to find sufficient sureties to keep the peace – Section 209 District Courts Act Chapter. 40 – Applicant must prove that the Respondent has threaten to commit a breach of the peace towards her – That the Applicant is in fear of the Respondent.

PRACTISE AND PROCEDURE- Credibility and weight –evidence by affidavit –assessment of credibility –necessary to determine which of the witnesses and their evidence are credible before making a finding of the relevant facts-Logic and commonsense play important role in addition to serious and irreconcilable inconsistencies.

PRACTISE AND PROCEDURE-Application neither criminal nor civil in nature –Standard of proof to be used is less than criminal standard of proof beyond reasonable doubt.

LEGISLATION

District Courts Act Chapter No.40.

CASES CITED

BALBAL V STATE (2007) Sup.Ct
IGISENG INVESTMENTS LTD V STARWEST CONST (2003) N2498
IN THE MATTER OF ANDREW KUMBAKOR (2003) N 2363(08/05/03)

ABBREVIATIONS

The following abbreviations appear in the judgment:

ACT District Court Act
APPL Applicant
COURT District Court
RESP Respondent
SECT Section
SUBS Subsection
VSO Volunteer Organization Services

COUNSEL

APPLICANT- IN PERSON
RESPONDENT- IN PERSON

INTRODUCTION

1. Kaumi .M. This is an application under the District Courts Act pursuant to Sect 209 Subs (a) (111) of this Act. The nature of the Application is as follows;

"That since 13th June 2009 at Madang the Respondent has threatened the Applicant who was under his care and caused her bodily injuries and the Applicant is in fear of him that the Respondent be required to find sufficient sureties to keep peace towards the Applicant".

2. This application was registered with the Madang District Court on 30th September 2009.

BACKGROUND

3. This application was first mentioned on the 20th October 2009 as scheduled in the Summons to a person on Information. This matter has gone through various stages of deliberation from start to end over a period of two (2) months.

a. On the 20/10/09 the Resp, Mr.Afinini denied the essence of the application and requested time to file affidavits in response. The court granted the Resp’s application, directing him file his affidavit in response by 3/11/09 at 9:30 and serve copy of it on the Applicant no later than 4:06 29/11/09 to allow her time to peruse it and adjourned to 04/11/09 at 9:30 am for mention.

b. On the 16/11/09 the Court enquired of the Applicant if she was in receipt of the Resp’s affidavit and if so if she wished to responds to it,to which she replied that she already had on the 11/11/09.The Court noted that it did not have a copy of that response before but would inquire with Registry about it. It further enquired of both parties if they wished to file any more documents to which both did not wish to. Both indicated to Court that they did not wish to exercise their rights of cross examination of the deponents of the respective affidavits and closed their respective cases. The Court adjourned the matter 30/11/09 at 9:30 am for submissions.

c. The Court further adjourned the matter after sighting two letters from both parties seeking further adjournment due commitments with Team Madang in the PNG Games in Port Moresby to the 7/12/09 for mention.

IV. On the 7/12/09 matter further adjourned due to non appearance by both parties to8/12/09.

d. On the 8/12/09 the Court enquired of both parties if they had filed their respective submissions but neither had done so. The Court then directed both parties to file their final submissions by Friday 15/12/09 12:00 midday and adjourned it to 15/12/098 for decision.

DEFENCE

4. The Resp denied the essence of the application.

EVIDENCE

5. The Appl filed four affidavits in support of her application and they basically depose the following matters:-

A. Affidavit of Appl dated 30/09/09

a. That she was the legal wife of the Resp to whom she had been married to since 2002 by way of a civil marriage solemnized by marriage celebrant, Mr. Clant Alok the Provincial Administrator and they have one child Jaiah Bukam Tawi;

b. That in 2003 marital discord started after an alleged affair her husband had with a Gladys Frigia in Madang while the Appl was working in Port Moresby and she only found out after she was confronted by the said Gladys in Madang when she came over on duty travel;

c. That when she asked the Resp about the matter he denied any knowledge of it;

d. That she became upset about the whole issue especially as she could not confide in any of their friends and so she sought solace with her then mentor, a Mr. John Wau which culminated in she engaging in sexual intercourse with him in Darwin in August 2004 because as she says of the circumstances she found herself in and did not talk about it until 21/06/09;

e. That she returned to Madang in 2005 because her mother was sick and also so she could be with the Resp and start a new job with VSO;

f. That on 2/07/07 their son was born and her mother-in-law came to live with them and this started a new problem between them until she returned to Wau in July 2008;

g. That after her mother-in-law left for Wau the Resp hardly slept in their home at Madang Technical College that he told her to leave their home but leave their son as he said she did not like his mother;

h. That she did not leave the house until 29/06/09 when he told her that he did not love her anymore and that their marriage was over, then she moved into a property rented by her employer Heli Niugini at Yamilon Point;

i. That on 13/06/09 she found intimate SMS messages on his phone which resulted in a confrontation between them and she was assaulted with the use of fists and legs by the Resp;

j. Paragraphs 28 to 44 state that on the 3/07, 7/07,22/07,24/07 and 28/07/09 the Appl was confronted by the Resp at her home and workplace and he also confronted her father Mr. Francis Kalip and his security officer Mr. George Kambing and Police;

k. That the confrontations on these dates between herself and the Resp were both physical and verbal and she was on the receiving end at all times and that is why she felt her life was in danger and that the Resp might kill her hence this application;

l. That in February 2008 he stopped having marital relations with her.

B. Affidavit of Appl dated 11/11/09.

I. This affidavit was missing from the Court file despite what the Appl told the Court on 16/11/09 and so this Court did not rely on it;

C.Affidavit of Francis Kalip dated 30/09/09

His affidavit confirms the marital problems between the parties started in 2003 and also confirms the assaults on her which she attests and to which he was witness to.

D. Affidavit of George Kambing dated 30/09/09

His affidavit corroborates the attestations contained in the affidavits of the Appl and Francis Kalip as to the events of the 22/07/09.

6. The Resp filed one Affidavit dated 27/10/09 in support of his denial and in short deposed to the following matters:

A. The events surrounding his discovery of the Appl’s adulterous affair with Mr. John Wau and what he did in the month of June 2009 and only at the end at paragraph 58 does he affirm the arguments and confrontations that occurred in the month of July 2009 between the Appl and himself, he does not deny these events either.

Final Submissions

The Respondent

7. The final submission of the Resp can be best described in two words, Admission and Apology because in it’s entirety it is not about summarizing his evidence in support of his initial denial nor is it about propounding why his denial is made out based on evidence he adduced in support of his cause but in essence an admission of his treatment of the Appl and seeking this Court’s sanction for compensation in a traditional reconciliation.

8. At paragraph 3 the Resp apologizes to the Court for taking up it’s time and to the Appl for the things he had done to her.

The Appellant

9. The Appl’s final submission basically outlines her evidence as adduced thru the affidavits by herself, Francis Kalip and George Kambing and that as a result the Court should grant her the orders she seeks.

ASSESSMENT OF EVIDENCE

10. The rules governing the process of which a court of law filters thru the evidence that is adduced in a trial before it in order to determine whether or not to accept a witness and his testimony in it’s deliberations are well established and the Supreme and National Courts have stated these rules and some of them inter alia are:-

I. Balbal v State (1) stated the way to receiving and determining whether or not to accept a witness and his testimony is well trodden one. Rules of evidence have much to see and do with the reception and rejection of evidence. Logic and common sense do play an important role in that, or have been noted and applied in many decisions of both this and National Court. This is an addition to any serious inconsistencies that might exist in the testimonies of the witness called by a party which makes any acceptance of the evidence difficult.

II. Igiseng Investment Ltd v Star West Const (2) stated that inconsistencies and illegal accounts indicates lack of credibility.

III. In the matter of Andrew Kumbakor (3) it was held that the question of credibility does not arise in relation to the undisputed fact or admitted facts.

11. In this case, both parties have given evidence by affidavits. Both parties have not exercised their right to cross examination so this Court will have to assess their credibility as witnesses of truth. It has to assess inter alia the believability of their stories, examine the degree of consistency in their evidence (both its intent consistency and its consistency with the evidence of other witnesses) to determine which version of events is the correct one.

12. As I intimated earlier in this paragraph this Court has not had the benefit of assessing the deponents of the filed affidavits as they were not subject to cross examination as the assessment of a witness is an intuitive process.

13. It is therefore necessary to determine which of their evidence are credible before making a finding of the relevant fact.

B. Undisputed facts

14.There is no dispute as to the events of July 2009 as the Resp has in essence in his affidavit dated 27/10/09 and final submission admitted to the matters raised against him by the Appl. in this matter;

15. It is undisputed that the complainant and the first defendant had lived together from February 2003 to the 29th June 2009;

16. It is was also undisputed that as a result of living together they parented one child;

17. It is also undisputed that the first defendant and second defendant at the time of instituting of the matter were no longer living together as a couple in a heterosexual relationship;

18. Further it was undisputed the defendant was an employee of the Madang Technical College and the Appl of Heli Niugini.

Contentious Factual Issues

19. There are consequently no contentious issues.

Findings.

20. The admission by the Resp at the end was essentially an anti climax to the whole matter and a waste of Courts time and of the Appl as well for that matter;

21. The evidence of the Resp did not challenge the evidence of the Appl in any material particular;

22. The evidence of the Resp concedes to the evidence of the Appl in its material particular;

23. The evidence of the Appl and her two witnesses consistent with each other, credible, logical and not challenged;

24. This Court therefore finds that the application by the Appl established on the pre requisite standard of proof, the balance of probabilities.

Orders.

25. This Court therefore makes the following orders:-

A. The Resp is placed on 12 months Good Behaviour Bond with sureties of K200:00 to keep the peace towards the Appl;

B.That the Resp be restrained from assaulting, insulting, abusing, intimidating or harassing the Appl (his wife) at any place, anywhere and anytime during the life of the GBB.

26. These orders are to ensure that the Resp’s endeavors to reconcile with his wife are conducted in an atmosphere of peace, love, goodwill and respect for fellowmen.

27. I do not make any orders in respect of the child, Jaiah Bukam Tawi as orders of that nature fall within the parameters of other relevant legislation and as the Court is a creature of legislation I am confined to the precincts of the Act.

28. Nor do I make any orders in respect to costs.

Applicant in Person
Respondent in Person
___________________________________________
(1) (2007) Supreme Court
(2) (2003) N 2498
(3) (2003) N2383